Barnes v. Columbia Lead Co.

• Decision Date: 24 May 1904
• Parties: BARNES et ux. v. COLUMBIA LEAD CO.
• Court: Missouri Court of Appeals

82 S.W. 203

107 Mo. App. 608

BARNES et ux. v. COLUMBIA LEAD CO.

St. Louis Court of Appeals. Missouri.

May 24, 1904.

MASTER — DEATH OF INFANT SERVANT — NEGLIGENCE — PLEADING AND PROOF — DAMAGES — VERDICT — EXCESSIVENESS — APPEAL — MOTION FOR NEW TRIAL.

1. Where exceptions were not taken and saved to the giving and refusing of instructions when the court acted on them, the questions cannot be presented for review on appeal by exceptions in the motion for a new trial.

2. In an action against an employer for the accidental death of an employé by falling through a hole at the surface to the bottom of a mine shaft, averments of the petition that the defendant carelessly permitted the escape of steam by the hole, so as to obstruct the view of it, and that the decedent's death was attributable to permitting steam to escape in the manner described, were general averments of negligence, so that, in the absence of objection, by motion or otherwise, to the adequacy of the petition, it is sufficient after verdict to warrant the admission of evidence to show that the steam escaping from the mine shaft obstructed the view.

3. In an action by the parents of an infant against his employer for his accidental death, the jury, in assessing damages, are entitled to weigh the probability of his services increasing in value with experience, and the maturing of his physical and mental powers as he advanced toward full age, but the damages recoverable are strictly compensatory.

4. In an action by the parents of an infant for the accidental death of the infant, who lacked but 2 years and 7½ months of being of full age, and whose earning capacity was but $1.60 per day at the time of his death, a verdict of $3,000 was excessive.

Appeal from Circuit Court, St. Francois County; R. A. Anthony, Judge.

Action by W. T. Barnes and wife against the Columbia Lead Company. From a judgment for plaintiffs, defendant appeals. Affirmed conditionally.

Huff & Sleeth, for appellant. Jerry B. Burks and Jasper N. Burks, for respondents.

Statement.

REYBURN, J.

This action was brought by plaintiffs, as the parents of Lemral Barnes, for recovery of damages by reason of his accidental death while in defendant's employ. The formal preliminary averments were embodied, and the statement of the cause of action then proceeded with the following allegations: "That at the time of the death of the plaintiffs' said son he was in the employ of the defendant, and working underground in its said mine; that on the 15th day of November, 1901, the defendant had and maintained a shaft on the land on which it was mining in said county; that said shaft was very deep, to wit, of the depth of about five hundred feet; that it had and maintained a cage which it used for the purpose of hoisting mineral out of said shaft, and lowering its employés into and hoisting them out of said shaft; that the defendant on said day and for some time previous thereto had neglected and carelessly permitted an excavation or hole to be made and suffered to be maintained around said cage at the top of its said shaft, and which said opening so made and maintained was a part of said shaft, and was so constructed with reference to the cage then in use as to require the deceased and others, in entering or leaving said shaft and cage at the surface landing, to step across and over the opening in said shaft, which was between said cage and the side of said shaft at the point of the surface landing; and plaintiffs further aver that said hole or opening was dangerous, and known to be dangerous by the defendant, or it could have known that the same was dangerous by the exercise of reasonable or ordinary care on its part; that in and about said hole defendant carelessly and negligently permitted the escape of steam, so as to obstruct the view thereof; that said Lemral Barnes was in the employ of defendant on or about the 15th day of November, 1901, working in said shaft aforesaid, and, while in the performance of his duties as employé of defendant, attempted to enter in or upon the cage of the defendant, used for hoisting purposes aforesaid, and used for lowering employés of defendant into said shaft, and, without carelessness or negligence on his part, and without knowledge on his part of the existence or the condition around said shaft, said Lemral Barnes fell and was precipitated into said hole or opening, and down and...